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District Court of Appeal, First District, Division 1, California.


Civ. 9667.

Decided: July 31, 1936

Thomas J. Straub, W. H. Spaulding, and Clinton F. Stanley, John J. Briare, all of San Francisco, for appellant. George K. Ford and Henry G. Sanford, both of San Francisco, for respondents.

The surviving mother, brother, and two sisters of a lineman employed by the Pacific Telephone & Telegraph Company sued the Pacific Gas & Electric Company to recover damages for his alleged wrongful death. They claimed that his death resulted from injuries which he received in a fall from a telephone pole on which he was working, and that the fall was due to his receiving an electric shock, caused by appellant's negligence. As to such negligence, they charged that appellant negligently permitted its power lines to sag and so contact a guy wire fastened to the telephone pole, that the guy wire became electrically charged by means of such contact, and that decedent received an electric shock when he touched the guy wire. The jury found the facts as claimed by respondents, for it returned a verdict in their favor. From the judgment entered accordingly, appellant appeals, claiming the evidence is insufficient to establish (1) that its power lines contacted the guy wire; and (2) that, if they did, it was negligent in permitting them to do so.

“In considering appellant's claims of the insufficiency of the evidence, it is our duty to so construe the evidence as to support the contentions of respondent to the extent that it is fairly susceptible of such construction, and in cases of conflict to accept as true that evidence which tends to sustain the verdict, unless it is inherently so improbable as to be palpably false.” Gett v. Pacific Gas & Electric Co., 192 Cal. 621, 623, 221 P. 376, 377. Accordingly, only such evidence as is favorable to respondents will be stated. If several inferences can reasonably be deduced from the evidence, this court must accept that one which supports the verdict. Gorman v. County of Sacramento, 92 Cal.App. 656, 268 P. 1083.

Three and one–half years before the accident, the Pacific Telephone & Telegraph Company erected and thereafter maintained on the west side of Stevenson street 85 feet southerly of the southern line of McCoppin street, in the city of San Francisco, a terminal pole about 25 feet high above the ground. The pole was braced by a guy wire with one end anchored in the ground 15 feet southerly of the pole, and with the other end wrapped twice around the pole 18 inches above the cross–arm. The guy wire was prevented from slipping down by a J hook (so called from its shape) forming part of it and placed on the inside or westerly side of the pole. A wooden cross–arm, on which were fastened coils of wires, used to connect new subscribers, was affixed to the pole. The distance from the center of the cross–arm to the top of the pole was 3 feet. About 4 inches below the center of the cross–arm, tied to the pole, there was a messenger wire which supported, by hangars, the communication cable. This cable passed down and into the rear of a terminal box, fastened to the north side of the pole, from which telephone lines were distributed to patrons in the vicinity. This box was 4 1/4 feet high, 1 1/2 feet wide, and 1 foot deep, and had attached thereto a metal handle on each side near the top. Immediately below the box there was a wooden platform 2 feet wide and 1 1/6 feet deep, with an open space of 9 inches between the inside edge of the platform and the front of the box. This was surrounded by a guard rail attached to the pole, 2 feet 5 inches above the platform and 1 foot 7 inches in width. For its ascension, iron steps were provided on the north and south sides of the pole, beginning about 8 feet above the ground. Before the erection of the telephone pole and continuously thereafter appellant had maintained four electrically charged lines, running diagonally in a northerly and southerly direction across Stevenson street. They were suspended from a cross–arm fastened to a pole, located at the southeast corner of Stevenson and McCoppin streets, and from a bracket, attached to a building on the west side of Stevenson street. When the telephone pole was installed, the power lines were 2 feet above the messenger wire and the nearest was over 2 feet east of the pole.

The deceased had been instructed to install a telephone at an address on McCoppin street. In order to do so, it was necessary to connect a drop wire with the communication cable. A resident of the neighborhood saw him climb the pole, with his back toward the street, until his waist was even with the platform. Devoting her attention to household duties for a couple of minutes, she next observed him lying in the street at the foot of the pole. The death certificate stated that the cause of his death was a crushing of the dorsal vertebræ with crushing of the spinal cord due to a fall.

On the day after the accident, representatives of the telephone company and appellant visited the pole to investigate the cause of decedent's fall. At that time the supervisor of cable maintenance of the telephone company, upon inspection, found the four power wires of the appellant caught or jammed in the J hook with their insulation broken by the tension. Upon test, he learned that the guy wire was energized from the contact of power lines with the J hook and carried a current of 265 volts. In his opinion a person touching the guy wire and any ground on the pole would receive sufficient shock to cause him to lose his balance and thereby fall. Within an hour of the fall, decedent's immediate superior inspected the pole and saw the four power lines bunched into the J hook, but he did not then ascertain to whom they belonged. He was present at the investigation the next day and then learned they belonged to appellant. He stated that the power wires appeared to be in the same position on both occasions. This evidence was sufficient to establish that appellant's power wire contacted the guy wire at the time of the accident. Dow v. Sunset Tel. & Tel. Co., 157 Cal. 182, 106 P. 587.

An engineer, employed by the telephone company, visited the scene of the accident on the fifth day after its occurrence. In the meantime, appellant had removed its power wires. By measuring, he found that the cross–arm on appellant's pole, to which its power wires had been attached, was 30.3 feet high above the ground level; that the bracket on the building, to which the power wires had also been suspended, was 25.58 feet high above the sidewalk; and that the distance between the cross–arm and bracket was 120 feet. He observed that appellant's pole deflected southerly for a distance which he estimated to be 16 or 17 inches. This deflection could have been due to any of several causes, but appeared to have taken place gradually. Assuming that, when the pole was perpendicular, the wires sagged 1 foot and that the wires were “number 8 soft drawn, solid double braided weather wire,” he calculated, by means of a formula, that the deflection of the pole caused the wires to sag 7 feet downward at the telephone pole. The weight and elasticity of the wire, which were vital factors in the computation, were derived from his assumption of its type. Appellant introduced into evidence specimens of No. 8 and No. 4 wire. The latter is larger than the former. The only testimony as to size of wire used in the power lines was given by appellant's lineman who testified that it was No. 4. Obviously, since the calculation related to a different size of wire than that of which the power lines were composed, it had no evidentiary value in the case. The engineer by plotting on co–ordinated paper the curve of the power wires with such 7–foot sag found that the wire nearest the telephone pole was 1 foot away and the farthest was 2 1/2 feet. This testimony is also valueless, because it deals with a 7–foot sag, which, as has been seen, concerns a type of wire not here involved.

When the telephone pole was erected, the power wires were 2 feet east of it. When the accident occurred, the power wires contacted the J hook on the west side of the telephone pole. To establish the cause of the changed position of the power wires, respondents relied solely upon the engineer's testimony. In considering their argument on this matter, the engineer's testimony will be considered as applicable to the case. As plotted by him, the distance between the sagging wires and the telephone pole did not give the clearance required by the rules of the Railroad Commission, introduced in evidence by respondents. The failure of appellant to maintain their power lines with the clearance required was negligence per se. Howell v. San Joaquin L. & P. Corp., 87 Cal.App. 44, 261 P. 1107. Appellant was required to make reasonable and proper inspection of its power lines and to use due diligence to discover and repair their dangerous sagging. Notice of this sagging may be implied if it existed for such a length of time that it should have been known. Tackett v. Henderson Brothers Co., 12 Cal.App. 658, 108 P. 151; Roberts v. Pacific Gas & Electric Co., 102 Cal.App. 422, 283 P. 353. Since the engineer stated that the deflection of the pole appeared to have been gradual, it is reasonable to infer that the sagging was also gradual, and therefore had continued for a considerable time. The jury was justified in finding that appellant was negligent in maintaining the power lines in a sagging condition.

In order to impose liability upon appellant, such negligence must have been a proximate cause of decedent's death. Unless the evidence shows a causal connection between the sagging of the power wires and their contact with the guy wire, respondents have failed to establish that appellant's negligence was actionable. Union Investment Co. v. San Francisco Gas & Elec. Co., 168 Cal. 58, 141 P. 807. Originally, the power wires were 2 feet easterly of the terminal pole and 2 feet above the messenger wire. As the messenger wire was 4 inches below the center of the cross–arm, which was 3 feet below the top of the terminal pole, the power wires were then 1 foot 4 inches below the top of this pole. Since the engineer calculated that the power wires had sagged 6 feet more than their initial sagging of 1 foot, the additional sagging would place them 7 feet 4 inches below the top of the pole. The J hook was 18 inches above the cross–arm, or 1 1/2 feet below the top of the pole on the opposite or west side. The witnesses all agreed that the power wires could not have been lifted to the top of the pole so that they could fall into contact with the J hook by the wind or other natural causes. They also agreed that such lifting could only have occurred through intervention of a human agency, and that no inexperienced person would have so changed the position of the wires, because of his appreciation of the danger of so doing. If appellant had reason to anticipate such intervention of a human agency, its negligence would be a proximate cause of the fall. Royal Indemnity Co. v. Midland Counties Public Ser. Corp., 42 Cal.App. 628, 183 P. 960. The difficulty of access to the wires and their weight eliminates the possibility that a person other than a lineman could have moved them. Because a lineman would appreciate the danger of moving them, appellant had no reason to believe that the power wires would be so moved. Appellant's claim, therefore, that it was not negligent in permitting the power wires to contact the guy wire is well taken.

Judgment reversed.

GRAY, Justice pro tem.

We concur: TYLER, P. J.; CASHIN, J.

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